By Darren LundcloseAuthor: Darren LundName: Darren LundEmail: dlund@fasken.comSite:http://www.fasken.com/en/darren-lund/About: Darren Lund is a member of the Trust, Wills, Estates and Charities at Fasken, Toronto office. Darren has expertise in a broad range of estate planning matters, including multiple wills, inter vivos trusts, disability planning, estate freezing, and planning for beneficiaries and assets outside Canada. Darren advises trustees and beneficiaries on all aspects of estate administration, both contentious and non-contentious, and his experience includes passing of fiduciary accounts, trust variations, post-mortem tax planning, and administering the Canadian estates of non-residents. He also speaks and writes on a variety of related topics such as estate planning for spouses and couples, inheriting overseas property and estate planning for persons with disabilities. He previously practised estates law at a large national law firm.
Email: dlund@fasken.comSee Authors Posts (34) •
May 18, 2018
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The new rules for determining parentage in Ontario, which were enacted by the All Families Are Equal Act (“AFAEA”), came into force on January 1, 2017. The new rules are set out in the new Part I of the Children’s Law Reform Act (“CLRA”), which replaced the former Parts I and II of the CLRA.

M.R.R. v. J.M., 2017 ONSC 2655, is one of the first reported decisions to apply the new parentage rules. The case originated as a child support application by MRR, the biological mother of JRR. In response to the application the biological father, JM, sought a declaration of non-parentage with respect to JRR. The reported decision is JM’s motion for the declaration of non-parentage.

MRR and JM had a prior relationship between 2007 and 2009. They broke up in 2009 but remained friends. JM began a new relationship after the break up. Around 2012 MRR, who was single, made inquiries about conceiving a child using assisted reproduction. MRR tried to conceive using artificial insemination from anonymous sperm donors several times, but was unsuccessful. Upon hearing of MRR’s frustration with the artificial insemination process JM offered to assist, first financially but then as a sperm donor. Since the likelihood of success using artificial insemination was reduced due to the prior attempts, they decided to try to conceive through sexual intercourse instead. MRR conceived a child in April 2014. MRR and JM ended their sexual relationship once MRR had conceived, and through time their social relationship dwindled. MRR’s child, JRR, was born on December 14, 2014.

At some point JM’s former wife found out about what MRR and JM called the “conception project”, and she began to “stalk” MRR, in the words of the decision. Partly in response to that harassment, MRR met with her lawyer and arranged for a written agreement to be drafted to document the intention that JM would not be a parent to JRR, but only a sperm donor. JM delayed signing the agreement but eventually did, not long after MRR advised JM she intended to seek child support. MRR argued that although they originally intended that JM would not be a parent, their intentions changed after JRR was born, JM had treated JRR as his child, and JRR should not be deprived of child support. JM argued that their mutual intention before conception was that he would not be a parent, and his intention had not changed.

Justice Freyer found that JM is a presumptive parent of JRR. Since JRR was conceived through sexual intercourse and not assisted reproduction, subsection 7(1) of the CLRA applies, which provides that the person who contributes sperm where conception occurs through sexual intercourse is recognized at law to be a parent of the child. There is an exception to that rule in subsection 7(4), but to come within that exception the person who contributes sperm and the birth parent must agree in writing before conception that the person who contributes sperm does not intend to be a parent. The agreement between MRR and JM was executed after conception (indeed, after the birth of JRR) and accordingly the exception did not apply.

However, the court also found that it was open to JM to seek a declaration of non-parentage. Freyer J. held that while there may be cases where the post-conception actions of the parties were so different from the pre-conception intention of the parties that a declaration of non-parentage would be inappropriate, in most cases the pre-conception intention of the parties should be given significant weight, which is consistent with the overall scheme of the new parentage rules. The balance of the evidence indicated that prior to conception both MRR and JM intended that JM would not be a parent, and on that basis the court held that JM was not a parent to JRR, and made the declaration of non-parentage.

While this decision is interesting in its own right, I would say it is required reading for anyone who wants to better understand the underlying purpose of the new parentage rules, the problems they were intended to address, and how they came about. In the reasons Freyer J. provides a concise summary of the shift that occurred in the case law over time to focus more on the substance of the parent-child relationship and less on solely biological factors, the Charter challenge that ultimately led to the new rules, and the principles the Ontario government pledged to uphold in developing the rules. In order to understand the “what” of the rules, it is helpful to first understand the “why” of the rules. This is a good place to start.

About Darren LundcloseAuthor: Darren LundName: Darren LundEmail: dlund@fasken.comSite:http://www.fasken.com/en/darren-lund/About: Darren Lund is a member of the Trust, Wills, Estates and Charities at Fasken, Toronto office. Darren has expertise in a broad range of estate planning matters, including multiple wills, inter vivos trusts, disability planning, estate freezing, and planning for beneficiaries and assets outside Canada. Darren advises trustees and beneficiaries on all aspects of estate administration, both contentious and non-contentious, and his experience includes passing of fiduciary accounts, trust variations, post-mortem tax planning, and administering the Canadian estates of non-residents. He also speaks and writes on a variety of related topics such as estate planning for spouses and couples, inheriting overseas property and estate planning for persons with disabilities. He previously practised estates law at a large national law firm.
Email: dlund@fasken.comSee Authors Posts (34)

Darren Lund is a member of the Trust, Wills, Estates and Charities at Fasken, Toronto office. Darren has expertise in a broad range of estate planning matters, including multiple wills, inter vivos trusts, disability planning, estate freezing, and planning for beneficiaries and assets outside Canada. Darren advises trustees and beneficiaries on all aspects of estate administration, both contentious and non-contentious, and his experience includes passing of fiduciary accounts, trust variations, post-mortem tax planning, and administering the Canadian estates of non-residents. He also speaks and writes on a variety of related topics such as estate planning for spouses and couples, inheriting overseas property and estate planning for persons with disabilities. He previously practised estates law at a large national law firm.
Email: dlund@fasken.com